J-S77037-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID M. MANILLA, :
:
Appellant : No. 1733 EDA 2018
Appeal from the PCRA Order May 18, 2018
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000790-2011
BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 21, 2019
David M. Manilla (Appellant) appeals from the order entered on May 18,
2018, which denied his second amended petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Appellant was sentenced to 10 to 25 years of incarceration after he
pleaded guilty to involuntary manslaughter, two counts of persons not to
possess firearm, and various hunting-related misdemeanors and summary
offenses.
The within convictions arose from the shooting death of
Barry Groh on November 29, 2010, the opening day of hunting
season. He was shot with a Remington .30-06 high-powered rifle
by Appellant, a convicted felon who was not permitted to possess
a firearm. The rifle had a range of almost two miles and was not
legally sanctioned for hunting. Appellant admitted that he
accidentally shot [Groh]. Instead of procuring help for [] Groh,
Appellant and his companions attempted to cover up Appellant’s
involvement.
*Retired Senior Judge assigned to the Superior Court.
J-S77037-18
Commonwealth v. Manilla, 53 A.3d 936 (Pa. Super. 2012) (unpublished
memorandum at 1-2).
On May 24, 2011, Appellant pleaded guilty to the aforementioned
charges. On July 8, 2011, after a lengthy hearing, the trial court sentenced
Appellant to an aggregate term of 10 to 25 years of incarceration.1 Appellant
filed a direct appeal to this Court, and on June 21, 2012, this Court affirmed
Appellant’s judgment of sentence. Manilla, supra. Appellant filed a petition
for allowance of appeal, which was denied by our Supreme Court on April 30,
2013. Commonwealth v. Manilla, 65 A.3d 413 (Pa. 2013).
On April 29, 2014, Appellant timely filed a counseled PCRA petition. On
March 3, 2017, Appellant, through new counsel, filed a motion to amend his
PCRA petition, which the court granted on April 12, 2017.2 On May 31, 2017,
1 Specifically, Appellant was sentenced to 2½ to 5 years of incarceration on
the involuntary manslaughter conviction, 5 to 10 years on the person not to
possess conviction involving the high-powered rifle used to shoot Groh, and
2½ to 10 years on the possession of a shotgun conviction, with all sentences
to be served consecutively.
2 Other than entries of appearance by Appellant’s counsel, there was no docket
activity in the nearly three years between the filing of Appellant’s first PCRA
petition and his motion to amend. Our Supreme Court has made clear that
“[t]he PCRA court [has] the ability and responsibility to manage its docket and
caseload and thus has an essential role in ensuring the timely resolution of
PCRA matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa.
2012).
-2-
J-S77037-18
Appellant filed a second motion to amend his petition.3 The PCRA court held
evidentiary hearings on June 8 and 19, 2017, at which Appellant testified and
presented the testimony of his mother and the two attorneys who had
represented him at his sentencing hearing. Thereafter, the PCRA court
directed the parties to file briefs, they complied, and the PCRA court filed a
memorandum opinion and order dismissing Appellant’s second amended PCRA
petition on May 18, 2018. Appellant timely filed a notice of appeal, and both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents one claim for our review: “was counsel
ineffective for devising a sentencing strategy that deprived [Appellant of] an
opportunity to explain certain facts that aggravated the sentence imposed.”
Appellant’s Brief at 3. Specifically, Appellant argues that counsel was
ineffective for failing to recommend to Appellant that he explain to the trial
court at the sentencing hearing (1) the presence of mud in the rifle; (2)
Appellant’s transfer of his property to his mother within days of the shooting;
and (3) Appellant’s failure to contact emergency services immediately after
the shooting. Id. at 21. Appellant further argues counsel was ineffective for
failing to recommend that he “allow the court and the Commonwealth to ask
him questions, rather than recommending that he allocute” at the sentencing
3 At the June 8, 2017 PCRA hearing, counsel for the Commonwealth stated,
and the PCRA court agreed, that the second motion to amend was granted on
June 5, 2017, but no such order appears in the certified record or docket
entries. N.T., 6/8/2017, at 6-7.
-3-
J-S77037-18
hearing. Id. He argues that but for counsel’s ineffectiveness, he would have
received a more lenient sentence. Id. at 20-28.
We review Appellant’s claim according to the following. “Our standard
of review of a [] court order granting or denying relief under the PCRA calls
upon us to determine ‘whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
Following a review of the certified record and the briefs for the parties,
we conclude that the opinion of the Honorable Brian T. McGuffin, which
incorporates fully the opinion of the Honorable Albert J. Cepparulo,4
thoroughly addresses Appellant’s issue and argument and applies the correct
law to facts that are supported by the record. We discern no error. Therefore,
we adopt the PCRA court’s opinions of September 12, 2018 and May 18, 2018,
as our own, and affirm the dismissal of Appellant’s second amended PCRA
petition based upon the reasons stated therein.5 See PCRA Court Opinion,
9/12/2018, at 7-11 (pagination supplied) (concluding that Appellant’s
ineffective assistance of counsel claim was without merit where it found
4 After Judge Cepparulo’s retirement from the court, this case was assigned
to Judge McGuffin. PCRA Opinion, 9/12/2018, at 6 (pagination supplied).
5The parties shall attach a copy of the PCRA court’s September 12, 2018 and
May 18, 2018 opinions to this memorandum in the event of further
proceedings.
-4-
J-S77037-18
Appellant’s proffered explanations for his conduct not credible, Appellant’s
attorneys had a reasonable basis for their actions, and Appellant failed to
demonstrate that he was prejudiced); PCRA Court Opinion, 5/18/2018, at 10-
24 (explaining why it found Appellant’s testimony not credible and deceptive
and recognizing that Appellant had been a criminal defense attorney for 19
years; concluding that counsel acted reasonably where counsel testified
credibly that if Appellant had explained his conduct at the sentencing hearing,
counsel believed it would have undermined Appellant’s taking responsibility
for his actions, and may have impacted negatively Appellant’s then-pending
federal criminal charges; and concluding that Appellant had not proven he was
prejudiced where there was no evidence he would have been sentenced
differently but for counsel’s alleged failures).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/19
-5-
Circulated 02/26/2019 10:33 AM
IN THE COURT OF COMMON PLEAS
BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
No. CP-09-CR-0000790-2011
COMMONWEALTH OF PENNSYLVANIA
POST-CONVICTION
V. RELIEF ACT
DAVID M. MANILLA .. ,,..,t-;i
, ... ;
,.,,
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OPINION
I. INTRODUCTION {_q
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Appellant David M. Manilla ("Manilla" or "Appellant") has appealed from the Order of
May 18, 2018, entered by the Honorable Albert J. Cepparulo, denying his second amended Post
Conviction Relief Act ("PCRA") Petition, after hearings on June 8 and 9, 2017. In his PCRA
Petition, Appellant sought relief from the judgment of sentence imposed upon him by Judge
Cepparulo on July 8, 2011.
The procedural and factual background of this matter, as well as the reasoning behind the
denial of Appellant's request for PCRA relief, was thoroughly described in Judge Cepparulo's
Memorandum Opinion and Order of May 18, 2018, which is incorporated herein and attached
hereto as Appendix "A."
To briefly recap the background of this matter, Appellant shot and killed Barry Groh on
November 29, 2010, with a high powered Remington Model 760 pump action .30-06 rifle while
hunting on the first day of deer season with his uncle, Michael Marino, and another companion,
Robert Monestero, on his farm in Richland Township, Bucks County, Pennsylvania. The rifle was
equipped with a scope and was illegal for any use in Bucks County due to its range and the county's
dense population. In addition, Appellant was a convicted felon who was prohibited from owning
or possessing any firearms as a result of his 1985 conviction for Aggravated Assault for striking a
fellow gym patron in Norristown, Pennsylvania with a steel bar and fracturing his skull.
The investigation that followed the shooting death of Barry Groh revealed that earlier in
the morning prior to shooting Mr. Groh, Appellant had had an encounter with his neighbor, Brian
Schrier, and his two teenaged daughters who were legally hunting in a tree stand on their adjacent
property. Appellant had approached them with his rifle pointed in their direction, and Mr. Schrier
inquired why Appellant was hunting with an impermissible rifle. Appellant responded untruthfully
that he was looking for a deer he had wounded earlier that morning. Appellant then left Schrier's
property, but shortly afterwards turned and fired a shot in the general direction of Schrier's tree
stand. Appellant's hunting companions told police that they did not see any deer when Appellant
fired the shot.
Appellant, Marino and Monestero then returned to Appellant's property on an ATV. After
driving through a cornfield, Appellant announced that he saw a deer and dismounted from the
A TV and fired his rifle into the woods. Marino later stated that he did not see or hear a deer before
or after Appellant fired his rifle. Appellant's shot struck and killed Groh, who had been standing
approximately 88 yards away by a shallow stream where he had dragged a buck he had just shot
and tagged. A device for pulling was attached to the buck indicating that it had been dragged there
from a property on the opposite side of the stream that Appellant did not own.
When Appellant walked to the creek and discovered Groh laying there, he yelled, "man
down in the creek." Appellant and his companions observed blood coming from the victim's left
side and flowing into the stream, 1 and despite two of the men having cell phones, no one called
911. Instead, they walked back to where Appellant had fired the shot and tried to locate the shell
casing, which they could not find. The casing was eventually recovered by Bucks County
detectives. Marino later told police that he did not call 911 because the victim was his nephew's
"responsibility."
Appellant and his companions then returned to the main house of his farm where he then
ran from each of the outbuildings trying to hide his rifle. He first tried to hide it in the cushions of
a couch, and then asked Marino to hide it, but his uncle declined his request. Appellant eventually
hid the rifle and a shotgun in his truck. Prior to hiding the guns, Appellant fired the shotgun into
the ground, explaining later that he had intended to lie to the police about which gun he had been
hunting with because he knew he should not have had the rifle.
At 12:39 P.M., more than an hour after shooting Barry Groh, Appellant called 911 and
reported that he "found someone" on his property who had apparently been killed in a "hunting
accident." Appellant transported the responding police officers and paramedic on his ATV to
Groh's body. When the paramedic opined that the victim had apparently died of a heart attack,
neither Appellant nor his companions advised the responding officials that he had actually been
shot.
On the following day, Appellant directed two of his farm employees to remove all of his
guns and ammunition from his residence in Worcester, Montgomery County, Pennsylvania, and
take them to the residence of his girlfriend, Barbara Fletcher. Further investigation revealed that
Appellant in fact possessed or owned approximately ninety-six (96) rifles and shotguns, many of
I
It would not be until eight days later on December 7, 2010, that Monestero would admit that he saw blood in the
water next to the victim and an apparent gunshot wound to the victim's left shoulder, and Marino would shortly
thereafter request a follow-up interview with detectives where he made similar admissions.
which he acquired by using Fletcher as a straw purchaser. Fletcher later told detectives that
Appellant had purchased guns in her name without her knowledge or permission.
On December 1, 2010, Appellant turned over to the investigating detectives the Remington
Model 760 pump action .30-06 rifle which his uncle identified as the gun used by Appellant on the
day of the shooting. The shell casing retrieved by the detectives from the shooting scene was
determined to have been fired from the rifle, but a forensic comparison of the bullet retrieved from
the victim's body with the rifle was impossible because the rifle barrel had been plugged with
approximately a half inch of mud. The rifle and bullet were, however, of the same caliber and had
the same rifling characteristics.
In the days following the shooting, Appellant began transferring various properties that he
owned to his family members, and on December 8, 2010, Appellant sold the 1155 California Road
property to PPL Electric Utilities Corporation for 1.45 Million dollars. In addition, it was revealed
that Barry Groh's wife filed an emergency petition for a restraining order concerning the transfer
of those properties, and Judge Mellon of this bench subsequently ordered the transfers reversed.
(See N.T. 6/8/17, pp. 41-42.)
As noted in Judge Cepparulo's Memorandum Opinion, Appellant was subsequently
charged with the following criminal counts:
Defendant was charged with one count of Involuntary Manslaughter FN 9 and
three counts of Persons Not To Possess, Use, Manufacture, Control, Sell Or
Transfer Firearms ("Possession of a Firearm by a Former Felon"), FN 10 as well as
one count of Recklessly Endangering Another Person ("REAP"); FN 11 he was also
charged with misdemeanor and summary hunting offenses for: (a) Shooting At Or
Causing Injury To Human Beings, FN 12 (b) Traps, Firearms, Ammunition, And Other
Devices, FN 13 (c) Taking Possession Of Game Or Wildlife, FN 14 (d) Loaded Firearm
In Vehicle, FN 15 and (e) Use OfArtificial Or Natural Bait. FN 16
FN 9. I 8 Pa.C.S. § 2504(a).
FN 10. 18 Pa.C.S. § 6105(a)(I).
FN 11. 18 Pa.C.S. § 2705.
FN 12. 34 Pa.C.S. § 2522(a).
FN 13. 34 Pa.C.S. § 2102(d).
FN 14. 34 Pa.C.S. § 2307(a).
FN 15. 34 Pa.C.S. § 3503(a).
FN 16. 34 Pa.C.S. § 2308(a)(8).
Memorandum Opinion, 5/18/18.
Appellant had waived his preliminary hearing as a result of a counseled negotiation in
which the Commonwealth agreed not to pursue a charge of Third Degree Murder as long as
Appellant did not seek a trial.
As also noted in Judge Cepparulo's Memorandum Opinion:
On May 24, 2011, during a guilty plea hearing before the Honorable Albert
J. Cepparulo, Judge with the Bucks County Court of Common Pleas, the
Commonwealth was granted permission by the Court to nolle prosse count three,
one of the three counts of Persons Not to Possess, Use, Manufacture, Control, Sell
or Transfer Firearms under 18 Pa.C.S. §6105(a)(l ), graded as a felony of the second
degree. Petitioner thereafter entered an open guilty plea to the remaining counts on
the criminal information, except for count four (4 ), the Involuntary Manslaughter
charge, to which the Petitioner entered a plea of no contest. Sentencing was deferred
by request of the Petitioner to allow for a pre-sentence investigation to be
completed. During the guilty plea hearing, both oral and written colloquies of the
plea were accomplished. Petitioner, an attorney himself, was represented by two
attorneys at the guilty plea and sentencing hearings; Keith Williams, Esquire, and
J. David Farrell, Esquire.
During the plea Petitioner was advised of both the guideline ranges and the
maximums for the offenses to which Petitioner entered a plea of guilty, including
the fact that the sentences for the individual offenses could run either concurrently
or consecutively with respect to counts one (1) , two (2) and four (4). (N.T.
5/24/2011 at 7-13).
During the July 8, 2011 sentencing hearing, Petitioner changed his plea on
count four (4), Involuntary Manslaughter from nolo contendere to guilty. After a
lengthy sentencing hearing where Petitioner called numerous character witnesses
and offered an expert and expert reports for mitigation, Petitioner was sentenced
to an aggregate sentence of ten (10) to twenty-five (25) years is a State Correctional
Institution. On the Involuntary Manslaughter count, Petitioner was sentenced
within the standard range of the Pennsylvania Sentencing Guidelines to not more
than two and one-half (2 Yz) to no more than five (5) years' incarceration. For
Possessing the high-powered rifle that killed Barry Groh ( count 2) Petitioner was
sentenced within the standard range of the Pennsylvania Sentencing Guidelines to
not less than five (5) to not more than ten (10) years in state prison. For possessing
the shotgun Petitioner used in an attempt to cover-up the shooting, Petitioner was
sentenced to two and one-half (2 Yz) to five (5) years in state prison, a sentence
below the mitigated range of the sentencing guidelines.'?' I The Court directed that
these sentences were to run consecutive to each other. The Petitioner was subject
to 32 years total incarceration. The PSI requested by the Petitioner in this matter
recommended a sentence of 12.5 to 25 years.
FN J. Appellant's Sentencing Guidelines were promulgated using an Offense Gravity Score
("OGS") often (10) for the Persons not to Possess charges, and an OGS of six (6) for the Involuntary
manslaughter charge. The Appellant's Prior Record Score ("PRS") was found to be a four (4) as a
result of a 1985 conviction for Aggravated Assault, graded as a felony of the first degree. The
Guideline ranges for the Persons Not to Possess charges on counts one and two were forty-eight to
sixty months in the standard range, thirty-six months in the mitigated range and sixty months in the
aggravated range. The Guideline ranges for count four (4), Involuntary manslaughter were twenty-
seven (27) to thirty (30) months in the standard range, twenty-one (21) months in the mitigated
range, and thirty (30) months in the aggravated range.
Petitioner was also ordered to pay restitution in the amount of $4,624.65 to
Theresa Groh, the widow of Barry Groh, and to pay a $10,000 fine on count 6, the
fine amount was also to be paid to the widow of the deceased. Additionally, the
Court ordered Petitioner, as a condition of his sentence, pay the costs of
prosecution, to not possess any firearms and to get a mental health evaluation and
abide by its recommendations. Petitioner was provided his post-sentence rights by
the Court.
Appellant's Motion for Reconsideration of Sentence was denied by Judge Cepparulo on
July 27, 2011. On August 2, 2011, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania from his judgment of sentence. On June 21, 2012, the Superior Court affirmed
Appellant's judgment of sentence, and the Supreme Court of Pennsylvania denied Appellant's
Petition for Allowance of Appeal on April 30, 2013.
On April 29, 2014, Appellant filed a timely request for post-conviction relief. After
Appellant's newly retained PCRA counsel filed motions to amend his original PCRA petition,
evidentiary hearings were held on June 8 and 19, 2017. Judge Cepparulo thereafter issued his
Memorandum Opinion and Order of May 18, 2018, denying Appellant's request for PCRA relief.
On June 7, 2018, Appellant filed a Notice of Appeal to the Superior Court of Pennsylvania
from Judge Cepparulo's Order of May 18, 2018. As a result of Judge Cepparulo's retirement from
the bench, this matter was assigned to the undersigned. On June 19, 2018, this Court issued an
order directing Appellant to file a concise statement of errors pursuant to Pa.R.A.P. Rule 1925(b ).
In compliance with our Order, Appellant submitted his statement of errors on July 9, 2018, which
is reproduced verbatim below.
II. ST A TEMENT OF ERRORS
In his "Statement Pursuant to PAR.App.Pro. 1925( c )," Appellant alleges the following:
1. The Court erred in failing to find that counsel was ineffective when they
failed to prepare the Defendant for and help him explain negative assertions and
inferences in the Pre-Sentence Report, including those arising from the presence of
mud in the barrel of the weapon that killed the victim; the transfer of property to
his mother, the transfer of firearms to Barbara Fletcher; his failure to contact
emergency services immediately after discovering the victim's body; his use of a
rifle and not a shotgun when he shot the victim; and failure to ask the defendant
questions at sentencing rather than have him to allocute.
2. The Court erred in failing to find counsel ineffective for failing to submit
additional character evidence in the form of letters on behalf of the Defendant.
Statement Pursuant to Pa.RJApp.Pro. 1925( c ).
III. DISCUSSION
The issues raised by Appellant in his Statement above that were not waived were
thoroughly discussed in Judge Cepparulo' s Memorandum Opinion that accompanied his Order of
May 18, 2018, denying Appellant's request for post-conviction relief. We refer to that
Memorandum Opinion for a discussion of the requirements for post-conviction relief pursuant to
the PCRA, 42 Pa.C.S.A. §§ 9541-9546, and Judge Cepparulo's detailed explanations of the reasons
for his Order.
As noted by Judge Cepparulo, in order to present a successful claim of ineffective
assistance counsel when seeking post-conviction relief, a PCRA petitioner must demonstrate that
counsel's performance was deficient and that the petitioner was prejudiced by that deficient
performance. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). If counsel's actions had
some reasonable basis for effectuating the client's interests, then they are deemed constitutionally
effective and counsel's performance cannot be found to have been deficient. Id. Appellant cannot
demonstrate that his counsel's performance was deficient, nor can he demonstrate, even if
counsel's performance was presumed deficient, that he was prejudiced by that allegedly deficient
performance.
As Judge Cepparulo further noted, Appellant's timely request for post-conviction relief is
essentially based upon a general claim that his counsel was ineffective, pursuant to 42 Pa.C.S.A.
§ 9543(a)(2)(ii), for failing to elicit from him, at his guilty plea and sentencing hearings, various
excuses that he is now offering to explain his conduct before and after killing Barry Groh.
Appellant suggests that he was prejudiced by his inability to explain his actions, and if he had had
the opportunity to present those excuses, he may have received a more lenient sentence.
After reviewing the record and Judge Cepparulo's credibility determinations, which were
based upon the testimony of Appellant and the various witnesses throughout these proceedings,
we have concluded that Appellant has essentially accused his counsel of ineffective assistance for
failing to proffer even more excuses for his inexcusable criminal conduct. We do not believe that
this is a legitimate basis for finding ineffective assistance of counsel.
After reviewing Appellant's testimony during the evidentiary hearings on June 8 and 19,
2017, and Judge Cepparulo's Memorandum Opinion, we did not find a shred of credibility in any
of Appellant's proffered explanations for his conduct. We also noted that when Appellant's trial
counsel was asked if he had discussed with Appellant prior to his sentencing "whether or not
[Appellant] should explain all these illegal actions he took that day to the Court," he responded as
follows:
We talked about what he was going to say. I told him, to the best of my
recollection, that I didn't think it would help him to try and explain every little
thing. That if he tried to do that, he would look very defensive. It would look like
he's not really taking responsibility, but I didn't want him trying to explain every
little thing to the judge. I didn't think it would be helpful.
N.T. 6/8/17, p. 87.
Appellant's counsel expressed a clear and reasonable justification for advising his client
not to attempt to explain "every little thing," as that effort would be viewed as an effort to avoid
accepting responsibility in this case and that such an effort would not be helpful in convincing the
presiding Judge to impose a lesser Sentence. Despite Appellant's strenuous arguments to the
contrary, it is clear that the advice of his counsel was not only sound but prescient. As Judge
Cepparulo observed, Appellant's claim of ineffective assistance of counsel "is based upon an
alleged failure to present an explanation to this Court which we determined to be deceptive,
entirely incredible and designed simply to shift blame and responsibility away from [Appellant]."
(Emphasis added.)
Accordingly, Appellant's counsel cannot be found ineffective for failing to help him
present to the Court additional deceptive and incredible explanations for his conduct before and
after he killed Mr. Groh.
Moreover, we reiterate Judge Cepparulo's determination that Appellant is incapable of
demonstrating that he was prejudiced by his counsel's alleged ineffectiveness. Appellant claims
that he was prejudiced by his inability to "explain negative assertions and inferences" that arose
from his actions after the killing, including inter alia placing mud in the barrel of the rifle that
killed the victim, the transfer of property to his mother and guns to his girlfriend, his use of a rifle
instead of shotgun, and his failure to immediately contact emergency services after discovering
the victim. Upon consideration of the totality of the circumstances surrounding the death of Mr.
Groh, the cold and calculating nature of Appellant's actions that were clearly designed to conceal
the evidence of his unethical and illegal conduct before and after he killed Mr. Groh, and the
Court's determination of Appellant's complete lack of credibility, it is extremely difficult to
envision a scenario in which the Court would have been convinced to impose a lesser sentence.
Appellant's counsel were successful in negotiating a reduction in the most severe charge
Appellant could have faced, given the facts and the totality of the circumstances surrounding Mr.
Groh's killing, from Third degree Murder to Involuntary Manslaughter. Judge Cepparulo was
obviously motivated to impose an appropriate sentencing scheme for the charges that Appellant
ultimately faced that reflected the egregious and horrific nature of his conduct. It is therefore
possible that, after determining that Appellant was not only untruthful in his explanations to the
Court but also clearly attempting to evade responsibility for his actions, Judge Cepparulo may very
well have imposed a harsher sentencing scheme. 2
In addition, Appellant has claimed that he was prejudiced by his inability to be questioned
by the Court during his allocution. As Judge Cepparulo observed, this is an amazing if not
incredible allegation considering that Appellant was a licensed criminal defense attorney in the
Commonwealth of Pennsylvania for nineteen (19) years who should have known that no such right
to examination during allocution exists. In fact the very point of allocution is to allow a Defendant
to offer a statement and not be subjected to examination. Furthermore, given the Court's
determination that he lacked credibility, Appellant may very well have jeopardized his guilty plea
if he had exposed himself to such examination. Appellant reviewed his allocution with his
attorneys, who were concerned with possible pending Federal charges stemming from this
incident, and accordingly advised him to allocute. Appellant cannot demonstrate actual prejudice
2
For example, Judge Cepparulo found Appellant's explanation that he fired the shot from the shotgun, not to deceive
the police as he originally admitted but because he had actually intended to commit suicide, to be completely self-
serving and devoid of any credibility. That claim was undermined by all of Appellant's other actions he undertook
following his killing of Mr. Groh, including his attempts to retrieve the spent shell casing, hide the rifle and his other
weapons, transfer the weapons to his girlfriend's house and transfer his properties to his mother. Those do not appear
to be the actions of someone contemplating suicide.
from his alleged inability to be examined during his allocution, and there is simply no merit to his
allegation.
Finally, Appellant has alleged that his counsel was ineffective for failing to submit
additional character evidence in the form of letters on behalf of him. This issue was addressed by
Judge Cepparulo in his Memorandum Opinion of May 18, 2018. We further note that Appellant
has failed to prove or even demonstrate how additional character reference letters, which would
presumably essentially state the same thing, would have mitigated his sentence. We therefore find
no merit to this issue.
IV. CONCLUSION
Appellant has appealed from the Order of May 18, 2018, denying his request for post-
conviction relief seeking modification of the sentences imposed after his guilty plea to charges that
resulted from his shooting to death of Barry Groh on November 29, 2010. Following the rejection
of his direct appeal, Appellant has now alleged through the PCRA claims of ineffective assistance
of counsel for failing to help him explain to the Court the actions he took after he shot Mr. Groh
to death. We have determined that counsel cannot be found ineffective for failing to assist
Appellant in presenting· additional excuses for his inexcusable criminal conduct to the Court,
excuses that have been determined to be incredible and non-meaningful. Furthermore, we have
determined that Appellant has failed to demonstrate that he was actually prejudiced by that alleged
ineffective assistance of counsel. We therefore find no merit to Appellant's issues, and respectfully
suggest that Appellant's appeal be denied and dismissed.
Copies Sent To:
Stuart Wilder, Esq.
124 East Court Street, 2nd Floor
Doylestown, PA 18901-4321
Attorney for Petitioner, DAYID M. MANILLA
Robert D. James, Esq.
Deputy District Attorney
Bucks County Justice Center
100 N. Main St.
Doylestown, PA 18901
Attorney for the Commonwealth
APPENDIX "A"
IN TH:E .COURT OF COM·MON PLEAS
:BUCKS :COUNTY, PENNSYLVANIA
.Cl,lIMlNAL DIVISION
No. CP-09-CR.:0000790-2011
COM.MONWEALTHOF PENNSYLVANIA
POST ·CON"VICTION
v. ,REI;,Uff ACT
_MEMORANDUM·OPlNION AN:() ORDER
I. INTRODUCTION
P�ti\�9rt�r!Defe.nd.ant David .M. Manilla .("MITTtiJ1t1 .or ··�Petitioner''.) has filed a Post
Conviction ReliefActo{"PCRA"Y:P�titi<>n; seeking relief.from.his.judgment of sentence imposed ill
·r
this matteron JµJy 8, :2011 � qr thereasonsthat folfow1 wedenyhis Petition ..
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IL FACTUAL BACKGROlJNP .;.., ... :..:;:· :-<
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The factual 'background underlying this matter was previously oescri.be�jij _thic Co�
.§� : .. · :rl'l
:Opiniop.9fN9.ve.rnber 3, 2011_1:from which we: have.reprcduced the foUowin,g·e��t; :w CJ
. ' {fl
I.ti
This case arises from {h� death of Barry .Groh (HGr:oh'')., 'afifty-two (52)
year old married father .of two, who was .' kilied b.y a single" bullet .ro :the heart
moments after b,aggiµg a nine .. point buck en.November �9.r.20:}. 0, the _ope11iµgday
of hunti�g season. Defendant would later confess thathe ac9(��n..taJly Shot Groh.
By law, Defendant should· not have been .. aiming a gun at anything; Defendant, who
.had been a well-known, criminal 4ef�n�� attorney in Mohtgomety -County,
Pennsylvania, hadbeen convicted ofaggravatedassault as afelcnyin · 19$$ andwas
:ptohibitGd from owning or possessing any firearms, :·Ff..,
FN l,.On May Z4. 2011, D.�fencJa:nt.pled nolo:cor:itenderdo lnvolu,itqt.y.Mans!a_ugbtet:(whfch.he
lateramended to a gui lty pie�). cl:nct_:pled guilty to multiple other .charges as set fpi;th:bel9.w,. · For :ease
ofr�f.en�hce,·the Notes pfT,e.st1r19ny-,from Defendant's plea colloquy.conducted on M,ay 14, WI 1
shall be referenced _i:is ''.1:'I· T.' rl�:m-:•g.'? · ·
At appr:oximate]y 5,:JO .A:M. on Novemhe!'29,JO tQ, Defendant arrived at
'his.farmland property located at :1 t55 Califomia Road, Ri�hlf\A41:ownship,:Bucks
. C9.u11ty ,J>eµnsyl van'ia;t.o hunt.deerwith his: unde,)yficll�el Marino {''.Mar:ino"J, and
their f�ie.nd, fellow auorneyRobert Monestero C'Mon�st,�ro'�}. (N.T. Plea Htg 18-
19.) FN·2'Th�' 1155 California Road property ,is .irnproved by a house and related .
. outbuildings, is approximately �igqty-eight (88) acres.andcontains a cornfield.and
a=Wo.ode.d=area,.w��li �· stream where Groh's:body w�s.foµ'ttd .. (See id,; E.xh.:C-10.)
In preparation forthehunt, Defendant had directed the caretaker :0fth� property to·
set com baits to.attract deer. (N'.I. Plea Hr'g (>l .)
Fl\! 2,-Qefl!,ndantownii five otherproperties 'in Mp.n,tgom¢r.y County, lt1�.1.ua:iT1g :M60 Valley Forge
Road, We>r¢<:��e� .M9.ntgomery County, PennsyJvarii�::whe:r�:he resided.
1
Whi'le waitingfor Marin« .and Mqn�stero· to arrive, Defendant hunted alone
but did not discharge his .shotgun, :(N.T. Plea Hr'g 1$.) )�.ltho1,1gh he had beep.
CQilViC!�� .of' aggravated assault -in i985 :fN}. �IJ,d, by law, Wa.S :PT()P,ibited from
possessing any firearms, Defendan: ·was hunting .wit4 � validly-issued 'hunting
license. :(Id . ) ·
Fh0.'1'he facts underlying Defendanrs:il_!Wa.v.at�q ��sau.lr.�o.nyicti1;m are.as follows:
.01) .f�llT:\lary 22., .1985, Defendant was at a ·gy[]l i.n N'orristown, :Pe11n.sy.lvania when.he told
,11feJl:0w .gym patren'that.if Darryl Childs {the¥icti¢ in thatcase) �11,cla "problem-with'him,
he would kil] the asshole." (N.:T. Plea B.r'g::6,�.) When he later confronted Childs in-the
parking lot of the .gyrn, Defendanf struckChilds in .. the '�ead and tprso:with a steel bar,
fractµriniliis skull. . (I{) Childs sub'�equ.¢n.tly,reqµi,te4° surgery to.:r�rnove a portion ofhis
.skµH. lli!J Following his aggravated as�·ai;ll� <:on\iictfon, ,Pefen��nt w.as sentenced.to not
.less than four :(4), nor more :tlJ�n {w.eiity-tt/tee (23.) rnontps; J11.carceration in a county
.correctionatfaelllty, (Id.) ·
)vfeapwhile, Groll was also hunting .at approximately l 0;J5 .A)vt on a
_p.r9per:ty adjacentto.Defendant's. (lg) At 10.:2.S A)\i:1., Gro;h; :who hadjust shot and
tagged a buck, called his wife, Theresa Groh, to .a$� her to 'have their .ycunger son,
Justin.put on '.'foli orange," bring his license; and .eomejoin him. ,(N.T. p:tea Hf·g
:19; N.T. Sentencing 20) fN:4 · ·· · ·
,FNA. For ease of reference, the Notes of J"estimqny from Defendant's sentencing en July �. :ZOU
.shall be referred to as "N.T:.$�!1t�nc:ing.'' ·
,At .l 0::30 .A;M., Defendant's hunting partners arrived and the three. men
�11:
completed 'the first drive ·of their hunt 'in. �JI,.,terrain v¢hi(;l�··{AT·V). (N, T .. Plea
'Hr'g ·20) Defendant then exchanged his shotgun for a 'Scoped :'R;e.rrifogtcm. 7$0
pump action d:0� loaded with .30-06 Springfield cartridges. (N:T� Plea i-J(g 19,.
.20.) . Although P�fendant was not permitted to. possess any· flrearms.due to N$ prior
: conviction, Jlie .shotgun was legaily p¢.tmitfe.d for. deer hunting fa Bucks County .
. (See N;T, Plea Hr'g 19-21 .) Th� Remington-pump .action rifle, .by contrast, was
.illegal for any usein Bucks 'County, �µy to the county's dense· po:puJ�tis.t
immediately Enid a ·sllot into tn� woods at the south. �lil :of his property. (Id.)
Marino later :sta,f¢ that be did not seeor hear adeerbefore or after Defendant fired
th,e shot (Id:)
Thisshct.struck and �illed,Grqh_; who was standing :appro.xim�t'(!ly eighty-
ei&ht (88.) yards awayon the bank of the shallow-stream where h� had:dragge.d his
buck. (See Exh..Q.-J4; :N.,:T. Plea Hfg 24, 42.,. 59-6{.) The investigation by B1.1cks
C()Q:nfy detectives using a sophistfoat�d Nikon laser would, later reveal 'that ·UO
persor; could. have seen Groh's deerfrom De fendant 's vantage.. point, .(N. T. ::Plea
Hr'g .47�48;) Detectives also �0110.lud�.d; however, that it was impossible to
determine whether Defendant could .have seen Groh, {id.) Defendant later :tqjq
police that he used tb.�.rifle'-s.sightrathedhan·its•scope. · (Id.)
After firing the shot, Defendant walked tothe-creek alone.while Marino.and
Mpneste{o weltedby the: ATV .. (N.. T.:PJea Hr'g 2sj :When Defendant.yelled "man
downIn.the creek," they folloW.�o. Defen:gflpt and saw Groh'sbody. (Id;) 'Groh's
feetwere la;yiQg·qn{he creekbed.and.most of his legsandtorso were :in thewater.
{J'{T. Plea lir'-g 28.) Groh's.orange vest hiy on the P.\ls!J.�s growing on the creek
'bankand his orange hat lay 'on.the.right 'side of'his body onthe ground. (N:T. Plea
Hr'g 25.,.36; Exh. C�12.) Groh's sonJustin, woU:J9 Iater.explainthat Groh never
took.his hat off.in thefield:duri11g .a p.µnJ:. (N.T. PleaHr!g 36�)
All tlu:e� men qp��r:ved:blood comingfrom the .l.eftside ofthe.vi�tim's body
and flowing into :the water. :(See N.T. Pl�a H(g �2, 53.} The.bullet had ent.eted
Page.3 of-24
Groh'sleft shoulder-whereit shattered.his humerus and created a four-inch gaping
-exirwound 'in.the inner Ieft.armbefore entering his chest cavity where it pierced
Groh) heart, both ofhis lungs, and his liver -�nd. fra�ture;q; ·t'W() ribs, before.exiting
his. chest ;;tn¢1 passing th:rou'gh his right arm. (F:xJ1,: C�14; :N:T. ·Plea Hf:g, 4.1.) The
.autopsy reportrevealed that a Iiter of blood had filled. each. lung: and concluded th.cit
.Groh had' bled·to :death in I��� than one.minute. ,(Id.; Exh. :C> 14)
Despite.atleast tw:q of'the men having.cell ·plJ_qnes with ih.�mj no.one .called
911, '(N.1'. :Ptea Hr'g 26.) Rather, 'Defendant asked Marino, -':Uncle Mike, did J
. st()o�:that guy?" (Id.} ·Marino later �dvi_sed po lice that he did not call 911 because
Groh was Defendant'sresponsibility, (N . .1\ J�lec1 Hr'g 26? .4:6)
After Ieaving Groh 's · body in.the creek, the three men rerurned �9 the .area
where Defendant: had, fired .the shot .to search. for the shell casing t�at had been
ejected from the rifle, (N.T.:.Pleif Hf':g:�9-JO.} They were, 'however, unable-to find
the shell. casing, (id::)1 which w��- eventually recovered by Bucks .County detectives,
(N�T .. Plea.Hr'g 4ti) .
Upon .return�ng to the main house of the- i 1.55 California Road prqp,eDy�
Defendant ran .from outbuilding to outbuilding attempting to hide the rifle. :(N. T.
Plea Hr'g 30 ..) First, Defendant attempted to hide the 'rifle beneath the. cushions of
a couch. (Id;) Defendantthen ask�(:t°Mtldno to hide.the .rifle fo.r. him, Pt,1tMar:in.o
refused. _(Id�) 'UHim�tely� Defendant :hid. his rifle, as well '$.i: his .shotgun, in his
truck. :(k!:}°. Prior tohiding :both. guns.Jiowever, Defendant fired.a roundfrom "the
twelve-gauge shotgun jnto ·the ground 'behind the house, mw
"fN 6 Defendant
�xpla�n:i4. tater that he fired the round from th�_$hotgun: and ryic:l th� guns .in order
to He to .the police 'about .Which ,g4n he was using :to hunt because "he shouldn't
have had [the rifle]." (Id.) ··
.FN" '6, 'In the inve.stigWoh .foll<:>"\Y.ing Qr.qh'.s _de�th, detectives observed one of D¢f�_nd\1Dt's.
employeesdiggingin :�l:le a�e� where Qif.er:r�;nt_�acl fkeii into the ground. :(NT Ple11 .. Hr�g ·3;2.)
This employee! h9wever,'c\el)ie:d tharllf \.ya� ��archiµg forthe. discharged shotgun slug, (Id.)
At 12.:.39 P.M.1 Defendantcalled 9.ll to report-that he "found someone" on
his property who appeared to have been _kH��� during a "hunting accident,"
verbatim', as follows; ·
Operator! ·911, where is the emergency?
Manilla: Hi, uh, :w.e ate in.Richland Township, California Road.
.Operator: Okay; 11 hundred .bloek.or intersectlon?
:}fallilla: Ahh, uss Ca1iforn:ia Road.
.Operator: Okay, and what is the phone numberyou are calling: from?
'Manilla: Ah1 l don't know.It's a cellphonenumber.
Operator: Okay, what's yournameplease?
· Manilla: My p_anJe'.S. David � ..
P<,tge4.of24
· Operator: Last. name?
Manilla; Manilla.
Operator: And what's .the problem therf7
M�n.illa:: :we found someone ·d.e .... ah, in the »-?�er Wi:th:a.. hunting accident.
Operator: Okay; are.theyawake and resrc,n,diO:g toyou right now?
Manilla: No, th.�y>look lilce they've alreadypassed.
Operator: Okay. How far into tlJe. water are they do you know?
Manilla: Ah, I don't know; I really c:an't tell you.Umm, .(si�)W� w<1lked:9ver to
him, I'm wet now,
Operator: 9k.a;Y,J. mean are his.feet in the water or ...
Manilla: }'k>,:no,.no.
{Exh! .C-13.) :Defendant transported the res.pqnqing Richland Township .po.Hee
officers.andparamedic to Qr:9h's}9dy with.his ATV, (N.T ..Ple.a·Hr;g.'34.) :lJpqp.
prethnfnaty review ofOrPh'� body, the paramedic· advisedthe :offo��$ that GrQh
.app�m'�d to have died of � heart attack. ,(id.) Neither Defendant .nor his two
companions corrected-the paramedic by. .explalning that they had observed 'Groh's
blood [n the water .or that Defendant had fired .a shot iJJ the direction of .Groh
minutes before .ffoding fos body. (N .T, Plea Hr' g .34�35.) It would be eight (8)
days· before·:a:1netnb¢t .ofthe huntiug pai:-ty,. specifically Monestero, 'admitted tfon
he had seen-Groh's blood and also observed a gunshot.wound, (N:T PleaHr'g ·5.t)
A large buck was found.severalfeet-awayfrom Groh' s :booy�:ho�h �:tag.@d,a device
for pulling the animal were attached to the :h1,19k, in�Hcattitg it had been pulled .te
that. location from 'a property on the :opposite side .of.the '. creek (which was not
owned by Defendant). (�Lt Plea Br'g3$.) H: 7
FN 7. Defendants: and !Iis·hi:mt1t1g j)llrtner.s would ·I ell ye the scene a her :prnvioing. the officers »}th
theircontact infc;>1ir,i�tioti,.butbefqre·th� officers advised them that they were. clear to leave the scene.
(RT. PleaHr'g J6.) Aft.er Oefend,�n(s.;deparw.r.e �11.d (he arrival ofthe.coroner,Or.ohis son, Ju�titi,
·would arrive on sceneand need. to .be Jed away �Y..f his. guns
.and take them to the' houseowned by his girlfriend, Barbara Fletcher (''Fiet:cher'1
(N.T. Plea Ht,g J8,) 'One employee tesrified before the 'grand jury that .it :tqo.k
.several trips to move .all .the guns. :(Id:) Also :at Defendant's direction, the
employees transported .a Iarge duffle hag of ammunition to' Fletcher :s -. house, (N. T,
.Pl¢a}l'.i:'.g '.3.,Q;) .
During· the course of the Investigation, Fletcher . advised Bucks County
detectives that.:sh� was shocked to hearthat Defendant.was ,a,·�on,yfote<:l felonnot
:penniued.tq possess.anyfirearms becauseshe 'had p).tp��q and sho.t:v,:ith 'him over
the past several years, often with othe.r .lawyers -or .members of law enforcement.
CN/(,.Plea;Br'.g 39.. ) :Fletcher.lat�rproyii:ied:de,t��tives with access to the guns that
D�fen4anrs erriployees had delivered toJw.r residence. (N:t: .Plea'Hr'g S4.) The
Page s of 24
.detectives inventoried eighty-six (86) rifles and shotguns, eighteen {J:8} of which
Fletcher did not.recognize as hers. (Id ..) Th� detectives :WQµ�d. also Iater find an
'addftiol)a,1 ten . (I 0). firearms, al! of which were rifles or shotguns, in. Defendant' s
Wqrceste.r residence. (N: T. Plea Bi' g S7�58:)
On 'December 1,.1010; Defendant turned over a Remington 'model 760
pump action )Oe:06 :rtf1.�:.V(i$. a.Redfieldthree-by-nine scope; wi)iqh was identifie,.d
by Marino as tp:e gun, used.by.Defendant Oh November 29.j 2010. {N.T. :Plea Hr'g
42.) A forensie-cornparison ofthe bullet retrieved fr9m Groh'sbody to the ;3:0-06
tifle:used by Defenda:ntwa$.hn.po���bl�\.h.owever; because the bore ofthe.rifle had
been pluggedwith approximately a halfinch of mud. XI(; Exh. ·C"8:) f�s .Analysis
of'Defendent'» ti:fle andthe recovered bullethowever, revealedthat both were of
· the same caliber- and had the .same general riffing characteristics, (N. T. flea Br' g
59,) The. ,.spent shell casing recovered from �h.e crime ,�c,e.p.�> · moreover, was
4,�te.rrni9e:d . to 'have .been 1ired from
Defendant' S ...3 Q,-Q6 rifle and was -. consistent
with the caliber nf bullet.recovered from Groh) body, :(N. T .. Plea Hr' g 59-60.)
F.N '8. Ip addition to the mu:(;i plugged into .the bore. of'therifle, the scope and the
rear fixed .sights of the rifle were damaged, and there was -. mud. op. 'the rear butt
stock, :(NT.)�lea:Hr':g:42�43.) The exterior of thebarre], however.was otherwise
clean and.undamaged :(Id;,;·see Ex.h. C-8)
D.efendant.waschargedwithone count .ofinvolilntary Manslaughter FN � and
three counts of Persons }{ot .To Possess, Use, M¢nu.fa.¢tµ,,:�,. ·Contrp}, Sel] Or
T,rr:msfer fit'.{farn1sf':Possession ofa Firearm byaForme» F.e(on'.'), .Fl',' 10 .lls well as
one .G.oµnt of Recklessly Endangering' Another Person ('';RE.AP"k F:N. rr he .was also
charged with misdemeanor and summary hunting offenses for: {�) Shooting At Or
Ca,isinglnjuty T:0: lfwnw11Jeings;FN 12 (b) Traps, Firearms, A'in,rii/tzlfi(Jfl,; 4.n.4 Qthqr
Deyices, FN.i� (c) Tql(ing Possession DfGam� Or Wildlife" FN .14 (a.¢.s. §·�522{�).
FNJ3. 34:Pa,C.S ... §�]02@,
FN 14.)4.fa.c.:s. .. § 23;01{a).
fN rs. J4 Pa.c.�r § J:.SO�{a).
FN J6.)4 .Pa.(:.S, § :2:JO�(a)(8)
Opinion, l 1 /3/11, pp. 1-:8.
UL :.P:R;OC�DlJllAL :BACKGROUND
The procedural 'background of fhis matter was. accurately and thoroughly explained in the
:':Respondent's Post-Conviction R.diefActRep:ly Brief' Jiled:�y theCommonwealth -,<>P, November
Page 6 of24
13, 20J7, \v.hich we 'have .reproduced in relevant part b¢loW;
On )ant1ary 31, . .201 I, before .the Bon9xable Ma!!#teria1 District Justice
Robert C .. Roth at Magisterial District .Coun, :07�2-Q5, the Petitioner· waived .his
preliminary hearing.forwarding all.ofthe above charges up tothe Bucks County
. Court of Common. :P:l�a$.. · ·
On Ma_n�h 3, 2011 a Criminal Irtfon:natiqn,, cm Crim:i_pp;l. Court Docket
nuIT)ber:0790 of.2011 was .f.ikd.chatging P.�tit�oner with. the above .listed criminal
and hunting violations. Petitioner waiveci his presence at .the- formal .arraignmenr
for:Match.4,)0l 1,
-0µ April _12; 2:0J I, :a.n order was .signed petrtiit�ing defense b�lli$ti�� exper]
tp examine "any a.nq .allrelevant baiHstic evidence" related.to the .c..iis� .against.the
Petitioner .
. On April ·i4, 2011 the Commonwealth.filed an Omnibus Pre-Trial Motion
with the B.u.tks County _C<)urt of Common Pleas.
:Q� M:ay '.24, 20tl; :durfog a guilty plea.hearing before the-Honorable Albert
J. Cepparulo, Judge with the Bucks 'County Court of Common Pleas, th�
:Commonwea{th · was
granted' permission by tp:i Court.to �o.ll� .prosse count three,
one of the.thte,e counts of"Persons Not toPossess, Use, Manufacture, .Co1,1.trQl,BeH
:orTr�n$fer .Fir�a,rms·:Un:der i}ia.CS. §6105.(a)(.l),: gta�_ed:�s)�.f�lon:y ofthe· s�c:Q�d
degree. Petitioner thereafterentered:an.open_g�ilty. plea to th.e ):;�U)ainj�g counts.on
the criminal information, excep; for co:uritJo\lr:(4); the Involuntary.Manslaughter
charge, to whiqhJ)-w Petitionerentered ,a. pleaof no contest. Sentencing was defen:ed
by _req1,1flst :of the .P�titj9ner: to ·a.llow: for a pre-sentence investigation to be
:c:ompleJ�q. During the gt1Uty plea hear1.ng,:both oraland wfinencolJpquies 9f�e
·plea were :acGo,;µpllshed. Petitioner, ari attorney himself, was .represented by two
_attpq1�ys .at theguiltypleaandsentencing 'hearings; Keith Willi��. Esquire, and
J. David· Farrell, Esqulre; ·
During the plea Petitioner was advised of.both th¢ :gu;ideli11e·range_s ancl the
.ID?X�IllUI11S. for
th� offenses to which l�etitionet. entered a plea .of guilty, it1cJt.1di.llg
the factthat.the sentences :forthe·fodiv1d�al offenses e_oU:lq ruri either concurrently
,or consecutively 'with respect to counts .one (.1) ; two {2) and four .(4). (N;T,
:5/24/2011 at 7�l3). ·
.During the }µly 8,.201:1- sentencinghearing, l?eJitjon;er:changei:i hisplea.on
-�o:uri:t: fo:JJf (4), In.,vdhintary· Manslaughter· from nolo ·c.Qnt�nq.er,e to gµilty, ·After a
I�ngtlly sentencing hearing -where Petitioner called numerous character witnesses
.and .effered. an expert.andexpert reports for mitigation, Petitioner was sentenced
.to.an aggregate sentence .9fteri{l 0) :to twenty-five (�5) yearsJs .a State Qqrre.1:tiq_nlc!-l
'lnsritution. .On .the Involuntary Manslaughter Gou.nt; Petitioner was .sentenced
within the standard.renge of the Pennsyl:V.�nia $ent�n2ing (i:uidelin:es :to not more
Page 7 of24
than two ·and Q1).e�half(2 -�) to. no more 'than five (5) years' Incarceration, For
Possessing the _liigh.:p9wered rifle that .killed Barry Groh (count 2) P¢tiJion�,r was
.sentenced within tl1e standard range of:the Pennsylvania Sentencing.Guidelines to
not less than five ( 5) to: not. mote than ten{l 0)-years in. W#:e pd�qn:. For possessing
the shotgun Petitioner used in an attempt to cover-up the shooting, Petitioner: wa:s
sentenced to two 'and.one-half (2 .!(2) to :f1vy (5:) years in state 'prison, � sentence
below the mitigated range.of the.sentencing guldelines.t" 1· The Courtdirected that·
these sentences were to.run consecutive to each other, The Petitioner was,subject
to J2 .years total' Incarceration. The PSI .requested by the Petitioner in :this matter
recommended a sentenee of 12;5 to 25 ye�rs. .
FN l. Appellarit'.s .Sentencing . Ouide:li.n�s were :·protJi.41gaJed using an :O(fe��� Gravity Score
('�()G$1')-of:ten (-10) for the Personsnouo Possess charges, ;i,nd·.in QG�:�fsix(6):for:t:he Involuntary
rrn1ns_lau_glit�r c�;i.r:ge. · The Appellant's Prior Record Score C°PRS") was fou11� to be a.four (4) as a
result :bf.a :·19&5 -conviction tor Aggravated Assault, graded .as a · ft:;l_o_ny of the fii:s_t degree, The
Guideiine _ranges for the Persons Nono Possesscharges on ¢oµn�s -. one and t.WQ were forty-eight. to
six�y rncnths.in try�_ standard.range, 'thirty-six months· in.the .mitiga.tt:q.. range �11d sixty:J)]onib� in the
aggravated range, :'fhe Qu\delineranges for: CO.UOt:fOJlr (4),)0:VOlµntary .!Ull,0Sla:µgqter Wt;re twenty,
�even (27). to frj.irty :{J{j) months in .the standard. range, twenty-one (21) tnqpt�l;l in the ,tn#igat_eq
range, and t�irty (pO} months in the a.g-:gra.viite.� ran��··
:Petttion�r wasalso ordered to pay restitution in the .ameunt of$4.,6t4.65 to
Theresa.Groh, the,wi,cI:o.w9fBar.�-y-Groh, and to :pay ·a,$.10,000 fine <>P count q; the.
fine· :;imo,11nt was also to .be paid :to the widow ofthe deceased. Additiqnally; the
_Cpurt -ordered .Petitioner, as 1a -conditlon -of .his: sentence, pay :the costs of
prosecution, to.not possess 'any firearms .and jo get a m<:;n;tal h��ld1 evaluation -and
abide by itsrccornmendations. :P�tjtfon�r :W:8,S _prpvided his post-sentence righ.t$. by
��� .
On July 15, 2011 a timely Motionfor-f?.eqr;n�sideratf.on:ofS,enieru;ew'4_s filed
by Petrtioner'stfial counsel JJn(lJoi:ward�.d to the Court for consideration.
On July 18, 20;1 L the 'Commonwealth 'filed an Answer to Petitioner's
?vf.p(i:q11.f() Reconsider Sentence. Petitioner sought a reconsideredsentence.avemng'
tha] "under _current standards. applied to the: parole pf state: prisoners :by lµe
Pennsylvania Board of'Probationand Parole theDefendant will be requiredto serve
sixty :(60�) percent or more o,f his maximum sentence which would be 'fifteen
years," and "Defendant bas serious health problems whichcould very possibly lead
to his death prior to his parole int�is:1�1atter." n12 · ·· ·
fNt. ln.t.he-GornJno��!!�lth's)\.nswer,.tl)� Commonwealthvenfled thatthe Pimn�yJyarria Board of
Probatien, and .J>arol� does no(have �- bo�rcl_ standard which dictates the necessary amount :oqi.:me
eninmete mustserye above their mi�jrn_�m sentence. Leo Dunn, the Assistant 'to the Executi.'ve
Director qf �:he- Boa.r4 _.indic�_teo :that _qver" 56% :of.all state prisoners ar� .heinJ� parol.ed 'at their
-mfoiml)rri :li.ente,nce.
:OnJuly 21:; 20-1·17 )uc:lg� Alb_ert ,L ·<:epparu:lo denied Petitioner's Motionw
Ree.on.sider Sent enc�. · ·· ·· ·
Pag� .. 8 of.24'
Qn August '?., 201.1, Petitioner :filed a timely Notice of Appeal to the
Pennsylvania $uper(or Cour: from the sentence imposed on July 81 ·.2011 and · the
July 'i7, 2-011 tje�ial:9f the Motion to Reconsider. Sentence· .
.On August 191 .2011 a Conds�:Srqtewfrrtofkf.qttersComplained on Appeal
.was filed hr Appellate counsel NorrisE, Gelman.
Or:rNoveJ,1.'iper},.:2'011:�n Opinion.for this matterwas filed by.theHonorable
Court ofCornmon Pl�as judge. Albert J:.,CeppWUJo.
. .
··
On November 4, zen .'a .complete record of this matter from the .Bucks
CountyCourt ofCommonPleas.was s�Ijt �P the Superior Court. of Pennsylvania.
On June 2.1, 20 l2 the Superior Court Affirmed the Judgment of Sentence
andthe Defendant's .�i;rbsequent Petition for.Allowance of Appea! was thereafter
,den:i.�d;b.y.th�Pennsylvania:Supteme Co\li:t on April 30} 2QlJ. ·
-On April :19., 2014 Petitioner filed fo.r relief ·under the Post-Conviction
':Relief Act-. :Jnitial Petition filed on behalf.ofPetitioner by Attorney J o.s.�p11 · Hylan,
Oq,Apr.i12:l, 2017.Petitionet's·Motion.toAm.�n4N:;RAJ?eti69n·[wasJfiled
bynew PCRA counsel Stuart Wilder, Esquire, ··
On May 3:L 2:0 l7 Pe.titiqner' s Se,c(;mq Motion to Amend PCRA Petition was
flied by counsel.
Evidentiary Hearings Were held cm Ju11e ,� and June 1.9, 2:Q 1 7-.
Prior to the June g\h eyid�n.tiary heating, counsel.forthe :P�thioner :with�.reW
.allprior claims .made 'by P�titiqner. in his initial counseled l�CRA petitien,
Itewpn,d�nt\s:P9s�-:Conviction Reiief Ac(Reply Sd�f, l.l/1:3/1 J,
· IV� · 1sSlJES RAJSlD B.Y.PETITIQN.E�
Pursuant to the "Second Motion to Amend Defendanr's .PCM Petition" filed on May 311
20,l 7f Petitioner .has raised, as .grounds for relief at the .PORA.hearings held onJune 8 and I 9,
2017, the following claims. ofineffective Assistance .of Counsel under the 'Sixth and Fourteenth
Arnendmentsto the: United States ConsthiJtiQti at:1,i'l .Art I, §9 ofthe Pennsylvania 'Constitutiorr'
1. Failure to challenge Jq:e··pefe.n:dant's sentence on-the ground thstthe :c;o,urt illegally took
'into account his _prior decision :to plead : not 'guilty .and ·go to· trial for 11 prior game law
violation; thereby punishing him for. exercising his rigllt ;to go to _trial in thatmatter;
2; Failure to recommend .and help Petitioner challenge at -sentencing the implications the
Courtcoulddraw from the presence of dirt in. one of the firearms 'by'having bimexplain.he
was not responsible for the condition of the firearm; · ·
·,3. Failure torecommend and help Petitioner explain the transferof'his propertyto his mother,
which .was. not done at his insti��ti9n pr wi.th his parUcipati_on;
:4. Failure to recommend and help Petitjoner explain his failure. to contact emergency services
:immed.iate}y aft�r the �]1qoting1 as an. explanation was available to explain _.wh.y and how
these events occurred and .why ·tne Co,un drew the wrong .implications from them -when
.sentencing the Petitioner;
5. Failure ·to allow the Court and the Commonwealth to 'ask him questions, rather than
.reco·mm:ending that lie aUocut� so he could answer .the .allegations tlre 'Court and .the
. Commonwealthraised thathe continued .tcr conceal evidence.ofthe .sheoting and.otherwise
did not _a(;t in a responsible and-remorseful way;:_anci
6 .. Failure to seek letters ofreference to present to the Court at sentencing to mitigate; the
sentence.
Second'MotiontoAmend Defendant's PCRA Petition, $/3.1/l7i
V. DISCUSSION
Petitioner' s timely reques; :for post-conviction. relief is essentially based .upon .a.. general
claimthathis counsel was ineffective, pursuant to 42 P:a.C.S,A..:.§ :Q54:3(?)(2)(ii), fot...falIIngto elicit
from Petitioner; athis guil�y plea al;}d sentencing hearings, various .excuses that he :no,w. offersto
the Court to �xpl?iP his-conduct before-and after Ms ·kUl.i.ng of H,1� victim, Barry Groh. Petitioner
suggests that he :was prejudiced by his inability to explain h}s actions and 'that ·if he :h�d. had the
opportunity to provide those excuses, this Court would have been more lenientin th� imposition
Tq prevail on a pedtiort fot:PCRA:t�h�f.. a p�ti;tioner must: plead and ·P°fOY� :by �
preponderance.of the evidence tha; his or her conviction 'or $,�nt¢nqe -re.stilted frow
.one or more of the ¢itGu,ms;tA:TIG�s enumerated in -42 :Pa:(;1.:$, § .9543(a).(2). These
circumstances inQluq.� 11 yiplation ofthePennsylvania or United $J�te� Constitution
or ineffectiveness of counsel, either of which "so undermined th� truth-determining
process that.no r�:ii.�ble ·adjudkatkm :ofguilt:orinpoc:�n�.e could. havetaken. place."
42 Pa.C.$.: §. 9S43{a)(2)(i) and (ii), :fo addition, a. petitioner must 'show that the
claims of error have not 'been previously litigated ,o:t 'waived. 41. .Pa.,C.S. §
9543(a)(3). An .issue has been waived "if the :Petitfon�rc9ulq have i:�i.s�� (it hµt
failed :t6 (lo SJ) before trial, .attrial, on appeal or in a.prior state pq�tH,c(}nviction
proceeding." 42.Pa.G.;�. § 95.44(b). Art -jSSlJ� has been preyiously litigated if"the
highest appellate court in which the-petitioner cp�i]� have had reviewas.a.matter of
right has ruled.on the merit$ of the 1.�s1,1�.·· 4,2 Pa.C.;� .. § 9544(a).(2).
Commonwealth v. Spotz, 18 A.3.d 244., -2$.9. {Pa.. 2Q p) ..
To prevail 'In q .�lairn qf Jneff�_c:tjye assistance of counsel, a petitioner must
·ovet:com.¢ the: presumption th.at counsel · is- effective by establishing all. of· the
fol.lo.wing three elements, as set forth :it1 Commbnwealth v. Pierce, 527 A.2d. 973,
975�76 (Pa. 1987.): :(1) the underlying legal claim has arguable merit; {2) counsel
had no .reasonable basis 'fot hi� ·pt. hex :ictiop qr inaction; and (3) the petitioner
suffered prejudice because of'ceunsel 's ineffectiveness, :Commonwealth v. Dennis,
:950 A2d 94$,, :954.(f>.�. ;2008). With-r�gard to the secortd,.Xul9
have been sentenced more leniently iftb.js.C:91.1f:! had determined he was not,res_P,opsiple -. A.more.
lenient .sentence however.was ht�hly unlikely given the facts and circumstances. ofthis case .and
.our determ:inaJi:o.o.tl}at:.m:appr9priate sentence had already been imposed.for the..charges to.which
Petitioner .h�4 pleaded .guilty. In this instance, P�titioner has claimed Ineffective assistance of
counsel for failingto present a dubious if:µot completely -hicr�di_bJe explanation. to theCourt, W(j
believe, therefore, that this .issue.is meritless :as·is Petitioner'aineffective.assistance claim.
(3)Faihn:e to exp_hdn transfer olP�titio)1er's property to his mother:aft�r �'1e
sbooting
Petitioner ,alie$�s that 'his counsel was 'ineffective for failing "to. recommend �µd help
Petitioner explain the transfer of.his propen.1 tpJ1i_s .mother� -whieh.was notdone at his instigation
or with his p_articipation:·,, Petitioner suggests that this 'Couq: derived a similar µnfavogible.
Page .1:5 -of 24
i�fe.r.�Qce _of unrepentant behavior: as c1 result .of the· transfer of his prqp�r.ty to his mother after
killing.the victim, inan apparent effort to protect 'his assets from any dvil proceedings that might
be initiated against him as a .result. of that killing,
Petitioner claims that:(;Q1,1nsel provided ineffectiveassistance by-failingts have Petitioner
explain :to the 'Court why ap.d how .his. properties .were transferred, · which would have .allegedly
overcome the unfavorable
. . . . .
. inference 'derived from his.actions, According to Petitioner,
. hismother
purportedly tr�sferred :the: properties without his .knowledgeor approval and therefore this Court.
should not-have inferred arry nefarious intent :on hi!? part. Once again, Petirioner's ineffective
assfatan.c.� of .counsel claim is premised µppf)_ .an unbelievable e?'pl:a:n�iqn and improb:abie
speculation thathe mayhave received :a more lenient sentence, anp it'tht!t�fore lacksany merit.
This-Court was aware that Petitioner-admitted at Ills sentencinghearing.on
. ·.
JµIy:8:,_2Qll,
. .
thae'hqok actions with respectto my_propertie3:<)ftransferring them out ofmy name," (see. N'.t.
6/8/17. pp. 73--74 (refer�n4it1tNiT, 7/8/U., p.. 71)), and _th�t 'l�is mother testified -�J the PCRA
heaiin_g:Qn)µp� :8; -40l7i.:that "[w[hatI was qyj�& toaceomplish was knowing that.we worked so
.hard forwhet we achieved.] was trying to protect-my sortati4.heJp hi��''(Se.e N:T ..6/8/l7, p. 66._)
.Both Pefitioner and .hismother were.obviouslyaware thattheir actions were wrongand' conducted
whh improper motive. Furthermore, h is evH:lent that Petitioner, who ·W-8,$ ·i:t .licensed attorney '1n
th(Com.monwealth:of:P¢@s.yJyania;:mu�thave beenor should have.been aware that'his proptrties
could net he transferredwithout his authorization, appr9y.al._and signature (emphasis supplied),
:A.s npt�,� above, we rejected. Petitioner's suggestion th&t ·Ms imprcper actions .were the
result.of.his impaired cognitive �b.iHties, and' .we 'also rejec] 'his latest explanation thflt he was
.suffering severe ernotiona! .distress and merely :fqJlqwing .his mother's instructions -when he
transferred m1� to 'his properties to her :111 an obvious effort to .proteet them ·from seizure,
Page 16 of 24
.'Petitioner's :moth�r's testimony that she �11S trying to help her son by unilaterally pr�padng the
necessary documents because hi} was "unfit mentally," .andthat Petitioner. was ;a dutiful son who
did what ·she :told him, te do, :(see N. T, 6/8/l 7, pp. 63.-:65), reveals an awareness that her actions
involved. fraudulent. conveyances of title. W,e cannot countenance .such fraudulent conduct and
rherefere reject Petitioner's "explanation" and find his ineffective assistance of 9QUJ1se1 .clairn in
'this instance .meritless.
·we_.qpt� parenthetically that Petitionerhad the ,qpp.ortupity to explain hisactions to this
Cour] during hisallocurion at his sentencing on.July .8, �:OJl, Instead, andir; complete contradiction
of.his-professed.desire J9 accept full responsibility for thedeath of Barry Groh, Petitioner 'has
.art.em,pt�Q to .d�flect that responsibility :by casting 'blame upon his sentencing counsel for his
inabilityto. convince.th.ifC,ol!rt().f his allegedly innocent conduct with an improbahle.explanation,
We believethis'issue to be.meritlessand Petitioner is not entitledto relief
:(4) Failure to. e.xpfafo :"Vh.Y he did n.:ot: contact emergency services .. iinm.edi�tely a{t�r
· . �hooting·tbe vlerim ··
· Petitio1wr next asserts tharhis -counse] was ineffectiv¢· for failing to recommend .and help
him. expl�in to this · Court 'Why .·he. failed to .contact. �mer_gency services immediately -�ft�r the
shqoJing;. Petitioner $.11$gests Jha(he could.have proyid�4: an explanation that would :naye dispelled
the .obvious unfavorable Jnferenee derived from that conduct; and which he again 'asserts would
.have resultedin the imposition.of a more.lenient
. . sentence .
Despite the fact thatPetitioner-shotand kWeli th� victim :shorli,y after ·11 :OQ a.m . , .and then
: returned to .his farm clubhouse andattempted
. to hidehis riileJipci didnot call :911 or emergency
-
services until .over.an .hour later. at 12::39 p.m.; and despite the fact that Petitioner and his hunting
compa.nions did notadvise · �be emergency medical responder who s.ub��qu.:�ntly arrived at the
scene ·that the -victim .had been shot; l;Ilq despite 'his· insistence throughout the hearings that he
Page 17 of 24:
accepted fi:�H respoasibility.forhis actions, Petitioner again contends that.he is entitled to 'PC.RA
relief because. his counsel. was ineffective
....... ".. -. . .. . . for failing... to present to the Court a specious explanation
.
.for his failure to act.
The facts and circumstances surrounding .the dearh of Barry Groh are, incontrovertible.
PetiJiqper .and h1s companions were .deerhunting on 'November 29, 20iO;:wh�n ihey encountered
a .neighbor, Brian '�c.h.rier, and .his two' ·d;c1ugh�ers around 'i 1 .oo a.m ..Wh�n Schrier observed
Petitioner cap:ying a high po.wer.e.q rif.11:: which he Was :poim{ng in Schrier's direction, he asked
:Veti.tion:�r why he was hunting with animpenniss.ibl�weap()n -. ,Petitiohet-respc;indl;lcl he was looking
to dispatch.. a previously wounded deer. After .Petitioner walked aw�Y. from his. encounter with
Schri.et, heinexplicablyfired a' shot'in'the.direotion.of Schrier and: his daughters. Shortly thereafter 1
Petitioner .'fired arrother shot which .killed ·Bi;!lJ'y Groh after. Groh .had .shot a large :bu.cJ<. on the
nei&hboting pr9pe_rt.y .Petitionerandhis companionsthen.failed to immediately c;ontactemerg¢ncy
personnel, despite, having at .least two cell. phone's, -and when -emergency 'personnel eventually
arrivedoveranhour la.t�r,.P�titioner.did notadvise them.that Grohhad' been.shot, even when the
,emergency· personnel expressed belief.that Groh had experienced tl; heart, attack, Petitioner then
to9.\<.1w�erous and substantial st.e.ps to .concealthe kilhng;. including. attempts to find.retrieve and
.
presumably hide the shell casingfrom the pt1l.J.eHh;:i.t killed 'Groh, andeffcrts 'torelocate and hide
not orily-:Petitio.n�r' s high powered rifle used to kill Groh, but �ppr9:xJrn�teJy 9 8 other: flrearrns.ihat
'P�titipner was J,rohibited ·.tr-0I11 'possessing,
.Petitioner then .attempted, .after the shooting, of. Mr. · Gtt)h, to transfer many of thos�
weapons to his girlfriend, Barbara Fletqh�r. in.an obvious effort to. conceal' his illegal ownership
ofthem. In. fact, it was revealed that due to a prior fel.o.ny conviction, :P¢titioner :W;8:$ prohibited
Page 18 of24
·from. purchasing and poss�$$.h1g any :fire,arms, yet he used Barbara fletcher as a straw buyer to
'purchase those.. weapons.'. (See N.J'. ·6/8/17, pp. J:6J�l.64; N:T'. .6/19/17, pp. &8'."89.)
Investigation further revealed that.after Peiilioner had killed Mr. Orph,. the tru,�� that Groh
pad shot was. subsequently pufa;d onto Petitioner's property from a prqpe.rty on the opposite side
of the creek \Vhicp. was not owned hy Petitioner, As :pr:evlously noted, Petitioner also toC>k
acldi1ional and-substantial stepsto transfer tit!� to.his real estatetohisnrother inan :�f(ort to protect
hisassets. Theseactions do .nQt:refl.��tth:e conduct.of'an l;n;qiyidµ""l who alleges.henegligently and
remorsefully sho; and killed ·the Victim and .suffered consequential .emotional distress, .but of
.someone who in a. cold :and calculating manner was trying to: conceal :all evidence of his criminal
and me�� conduc],
Jnth,e explanation he provided at his guilty pl�a for the delay fo.r¢po.tth1g the. shooting of
Barry Groh, Petitioner .alleged '(Ila� he qi.� .not .have .a cefl phone with him. He further and
'incredulously .claimed that :his companions, ·Who 'included the former District Attotne),' of
:Montgoniery County, Mike Marino, .didnot permit 'him to -use their.cellphones or call emergency
service 'because they "didn' t. wantt« get .involved." :(See, e. g;, N. T. :6/�/17, :P.P· lS4, l 55; · N. T.
: 6/19/:17 i :P· 4;!) Ey1!11.'if:tpjs Court :considered that. explanation to be credible, and Petitioner.and
his companions were not activ.ily en!5aged in .attempting to cover :up th� circumstances behind
Gtoh's death.that explanation describes egregious and horrlfic.conduct which cannot .be excused,
We further .note tbat despite the .evidence that the bu¢k that Qrqh:µa.d -shot.had been dragged onto
PetitiOn¢r s pro.perty from the location. w�e�e it had originally been killed, presumably in a
1
calculated effortto create :a plausible .excuse for why Petitioner fired at Groh, Petitioner had the
.audaciiy to. att,ernpt to. shift 'theblame to the victim by suggesting.during his allocution tll�.t tp�
.victim v,'�s. not permitted to Je�ally hµn.t;Jn.·�hat area. in the J1r�t'place.,(S�� ·N. T, 718/:1.ldt ·68;74:.)
Page 19 of 24
The record :is ..completely devoid of any evidence that tNpµld convince this C:01,1rt that
Appellant ·atternp.t�d to. imm.edia:tely contact emergency .�,ervices after shooting Mr, .Groh. The
believable facts reveal instead that, rather than immediately contact the authorities, Petltlohet
.proceeded to his clubhouse where he attempted to hide his rifle :?119. then .took steps to conceal his
substantial collection .of firearms, Despite Petitioner's assertions to ihe. contrary, i,t. was :apparent
that steBs were taken to destroy the ballistics evidence by plu:$ging the riflebarrel with mud, and
that . .Peti:tioner. even fit.¢d -one of his . shotguns into the. ground in an attempt· to create .another
plausibi1texplanatipn in;·WlJ,ich he -was:gofo� to claim to the game warden tb.?t he had actually fired
a shotgunandnottheRemington 7(>0 pmnp action J0-0.6.ri:f11::-, (Se¢ N,T. W19/l 7,pp.:40A I,,. 59:)
Furthermore; we:(;p.rnpl¢t¢1 y rej ected, as self-serving ·qnq · incredi ble P eti tioner' s. claim t,haJ;
ratherthan creating 1:(believable altemative explanation for his actions? he 'instead :Pickeq up the
.shotgun with the intention ofkiHi.P� himself; and that as.a resulthe was subsequently "302'd�' two.
days later .. (See NS. (,/8/17, PP., 156··157�) ·Petitfone,:'s claim.tha(he:put one round in the chamber
. of the shotgun but was too nervous t:O · "µnJo�":it and' therefore just "fired.a ,�ho.t" il).t� the ground,
-was completely devoid of any credibility, and :con.trasJs withthe i�i�i�l statements.he.provided Jo
: theJnvestiga,tin� detectives to.whomhe now claimshe Iied{emphasis. supplied), (S.ec N :T. 61,9117,
pp, 4'0, 57�5,.Q..).Petitioner's actions :in, seeking assistance fronrhiscompanions as .well.as directing
his farm employees to find the .sheil casing from Ute· bullet tha; �Hl�d Groh and 'help .hide his
voluminous collectionof firearms thathe.was prohibited Jtom. owning, bi's attempt Jo hide :those
.weapon;s .at his girlfriend '.s .. house, · artd bis efforts to transfer title. to bis ,prope.tdes . to his mother
belie ;his alleged intent to. commit. suicide . .Instead, it was obvious to this Court. that Petitioner's
entire course of conduct was calculated to Gover �p all traces not ocly of his illega] possession of
Page 20 of 24
firearms but his responsibility for shooting ap.f his .testimeny to ¢.e _cqntrary, .Petitioner r�{qctaptly admitted that the decision ·to
.allecute.was his .. (S�!! N.'.f.N8!.17, p. "179)
P�titipne1/s counsel.also testified throughout thesehearingsthat, upoh.iCO:OSide.ration of'the
potellth1JJederaLcha,rges.l;'etitio:ner.faced as the result of the discovery ()fhi$ :illeg.1 possession of
.a vast.and extensive collection of firearms, Petitioner's decision.to c1lh:,c:µte was a reasonable one:
: Botn of Petitioner' s counsel e�_pr_esse.4 .concern that .any information ot· testimony eU�-ite_q from
Pe�iJioner regarding'his possession ofthose firearms would jeopardize his.federal case, and as one
of his attorneys stated;"! wasri\gQfog to subject him.to eross-examinationwhen hehad a federal
op.en jnyesfi�alion:'' (See .N.T, :(i/8/!7, :PP· Jl, 5:61 :9�, J06"107) 'Upon :reco.�pition of the well-
established principle th�t counsel. cannot be ineffec.dve if It· is determined that counsel's .actions
.had.some reasonable basis for effectuating the client's in.ter�:,�sj it is. clear.that Petitioner's counsel
:.Page.23 qf.24
had a vc;ry sound basis for advising l',�titiqner to allocute ratter than undergo direct and cross
examination during his sentencing,
Clearly there is no right or option for-a.defendant. to be questioned or examined and cross-
examined :during .allocution. In addition, :it .is not only -clear t,ii.�t lpe decision to all¢cute wa.s
:Petifioner',s,b:ut that Petitioner's counsel had a. reasonable basis.for .advisingPetitiener-not submit
to examination as .that could -jeopardize his defense to potential federal firearms .charges .
Petitioner's .allegaticna are therefore meritless and his .ineffe9ttvy assistance of counsel claim .in
this.instance should also :be denied.
VI. G.ONCLUSION
This Court finds-·tpat theineffective .asslsrance of foµnsel claims underlying Petitioner's
request "for relief in bis amended PCRA.p�ti.tjon are speculative and meritless, Peti�ioner's counsel
.had reasonable 'bases for their :�Gtion�., and Petitidn'et" cannot demonstrate that he was- prejudiced;
Therefore, Pt!{itio:p�r.'$ .requests .for relief ·pµrsuant ·tq -the .PCRA are denied .and we enter the
_fq_llow1n� Order:
Page 24· of24
Copies Sent To:
Stt�.arl Wilder, Esquire
'PRATT, BRETTJ.i: L,UCE,.P.C.
6S East Court :Stre�t
:AO. Box 959
0
PoyLes�own, PA .I:&90 I
A(tqrn�yfor Petitioner DAVID M.
. . .... ·M
. ANILLA
. .. . .
,;
Robert D.. Ja111��,· Es:q:uirt
Deputy District Attorn�y
:Qffi,ce-'of the District Attorney
Bueks.CountyJusrice. Center
100:M Main Street
,Doyfosto.�, PA ).8901
.Attorn¢y..fQr the 'Commonweann
IN THE COURT Of GQ;Ml\'ION.PLEAS
···:BUCKS COUNTY, PENNSYLVANIA
<:R�MINAL DIVISl.ON
'No. _CP.,09-CR-.0000790-10.l.l
. �·
-COMMONWEALTH OF PEN'N.SYLYANJA
PO.ST-CONVICTION
Y. RELIEFAC1
DAVlDM. MANJL�A
,AND NOW, this .IEf:T.y of May, 2018, upon.ccnsideration of:
1. ·nie Pqst.;C,q11yi'cti�m · Re.lief A�t (":PCRA"..) Petition tll�d by Petitioner David M.
. Mantua 'on Apr.}f 25., ZOI 4;
2, {he �·s.eco.nd)Y.fo\jqn:to Am�nclDefencfont's PCR.APet.iti_on'·'. filed by PetitiQn:�r:911.N.fay
31, 201-7;
J. Th� .evidenoe submitted M the }1�atjngs: held on 'June 8 and 19; 2.017 on .the merits of
�etitioper's:PCRA claims; and
4. A total ·Md ·cqmpl�te review. ofPeritioner's record;
It isJwr�l,y-·ORDERED and l)ECR:E.ED that.Petitioner's PCRA :P;¢titi;onJHed on Apri! _25,
:1014 and Am�114ed on May 3'"1! Z0:1-7 Is hereby DENIEJ)·and OIS1vHS�pD. .
:Petitioner ;sha!l .h?.Y� :thJrty.{JO) days· from the date qfthi� :-Ordet·to file an Appea! to the
Superior-Courtof P:en,psylvwii:a from this Order, ··
THE
:BY... '... COURT:
.. . .. ·.